Aaron Michael Franks v. State ( 2019 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-18-00075-CR
AARON MICHAEL FRANKS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the County Court
Deaf Smith County, Texas
Trial Court No. 2017-0010, Honorable D.J. Wagner, Presiding
March 20, 2019
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
Appellant, Aaron Michael Franks, was charged with and convicted of misdemeanor
driving while intoxicated (DWI). See TEX. PENAL CODE ANN. § 49.04 (West Supp. 2018).
Appellant having been previously convicted of DWI once, his current offense was
punishable as a Class A misdemeanor, as opposed to a Class B misdemeanor. See id.
§ 49.09(a). The sole issue before us concerns the reading of the enhancement paragraph
(elevating the offense to a Class A misdemeanor) prior to the beginning of the guilt-
innocence phase of the jury trial and in the presence of the jury. By the State doing so, it
allegedly interjected evidence of a prior conviction in violation of article 36.01 of the Texas
Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 36.01(a)(1) (West
2007) (“When prior convictions are alleged for purposes of enhancement only and are not
jurisdictional, that portion of the indictment or information reciting such convictions shall
not be read until the hearing on punishment is held as provided in Article 37.07.”). We
affirm.
Complaints regarding the admission of evidence must be preserved for review.
This is done by a timely objection or motion that states the ground for the ruling with
sufficient specificity to apprise the trial court of the complaint. Douds v. State, 472 S.W.3d
670, 674 (Tex. Crim. App. 2015); Carter v. State, 463 S.W.3d 218, 227 (Tex. App.—
Amarillo 2015, no pet.). An objection is timely when made as soon as the need for one
becomes apparent. Lackey v. State, 364 S.W.3d 837, 843 (Tex. Crim. App. 2012); Aguilar
v. State, 26 S.W.3d 901, 905–906 (Tex. Crim. App. 2000) (en banc). Moreover, the
objection urged at trial must comport with the issue raised on appeal. Clark v. State, 365
S.W.3d 333, 339 (Tex. Crim. App. 2012). Should the appellant fail to satisfy any of these
requirements, then his complaint is lost.
Here, the record reflects that appellant filed a motion in limine prior to trial, which
motion dealt with the admission of evidence concerning prior convictions. Yet, such a
motion does not preserve error. See Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim.
App. 2007); Jimenez v. State, No. 07-13-00347-CR, 2014 Tex. App. LEXIS 7820, at *5
(Tex. App.—Amarillo July 17, 2014, no pet.) (mem. op., not designated for publication).
So, it remained incumbent upon appellant to timely object at trial.
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Yet, no objection was voiced until after the prosecutor read the enhancement
paragraph before the jury, the trial court asked appellant how he pled to it, and appellant
responded “true.” Delaying his objection until those circumstances occurred is
problematic. Generally, “if a question clearly calls for an objectionable response, a
defendant should make an objection before the witness responds;” otherwise the alleged
error is waived. Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995) (en banc);
Rigo v. State, No. 07-14-00088-CR, 2015 Tex. App. LEXIS 11213, at *4–5 (Tex. App.—
Amarillo Oct. 29, 2015, no pet.) (mem. op., not designated for publication). Appellant not
only had been asked but also answered the question about his prior conviction before
objecting. Additionally, he proffered neither to the trial court nor us any explanation as
to why he waited to complain. See Rigo, 2015 Tex. App. LEXIS 11213, at *4-5 (observing
that an objection made after the witness answers may preserve error if an acceptable
reason exists for not objecting earlier). Thus, his objection was untimely.
As for the objection eventually uttered, it apparently concerned the admission of
additional evidence depicting the conviction, not whether evidence of the conviction was
admissible in the first place. Indeed, appellant sought to exclude the additional
information because it was “surplusage” and “repetitious.” Thus, the objection urged
below does not comport with the issue broached on appeal.
Finally, the complaint broached here was mentioned at a hearing upon appellant’s
motion for new trial. It was there that he first alluded to article 36.01 of the Code of
Criminal Procedure and its restriction against admitting the prior conviction during the
guilt-innocence phase of the trial. He explained that it had long been the law that prior
convictions utilized only for purposes of enhancing punishment were admissible only
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during the punishment phase. In so arguing, however, he effectively established that the
basis for his complaint existed when the evidence of his earlier DWI was initially revealed
to the jury. Thus, the need and grounds for an objection were apparent at that time and
delaying mention of the ground until the trial court held a hearing on his motion for new
trial was untimely. See Torres v. State, 424 S.W.3d 245, 256 (Tex. App.—Houston [14th
Dist.] 2014, pet. ref’d) (where objection to the evidence was first raised via motions for a
directed verdict and new trial, holding that the objection was untimely and failed to
preserve the ground for review); accord Courson v. State, 160 S.W.3d 125, 129 (Tex.
App.—Fort Worth 2005, no pet.) (holding the same after observing that “Appellant was
well aware at the time the State elicited testimony regarding Morgan’s hearsay statements
of his right to confront witnesses against him as well as the necessity of objecting at trial
to the admission of these statements without his having had the opportunity to examine
Morgan regarding the statements”).
In sum, appellant failed to preserve for review his current complaint.
Consequently, we overrule it and affirm the trial court’s judgment.
Brian Quinn
Chief Justice
Do not publish.
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